Tuesday, May 31, 2016

Chen Man (center) served 21 years in prison for a crime he did not commit. Photo credit: SCMP

Increased attention to wrongful convictions in recent years has caused Chinese judicial authorities to retry more criminal cases and exonerate greater numbers of long-serving prisoners. What these trends mask, however, are the formidable obstacles of getting a criminal case reopened in China.

Whether one looks at the case of Chen Man—released earlier this year after serving 21 years for a murder he didn’t commit—or the posthumous exoneration of Huugjilt in 2014—18 years after his execution—it is clear that it takes many years of petitioning just to get authorities to consider reopening a case. After a petition is accepted, it can still take years to decide whether it meets the criteria for retrial, as demonstrated by the ongoing effort to secure posthumous exoneration for Nie Shubin.

Critics point out that the protracted and arbitrary manner in which these post-conviction appeals are handled is almost as damaging to the credibility of the judicial system as wrongful convictions themselves. Late last month, a group of lawyers and legal experts met in Beijing to discuss ways to address this problem, indicating that reform may be on the horizon.

Conditions for Relief

China’s criminal procedure gives both defense and prosecution the right to appeal the verdict of a trial heard in the first instance. If either side exercises this right, the court one level above holds a second-instance proceeding. The outcome of this proceeding is considered final (unless it results in a decision to send the case back for retrial). Defendants who lose their appeals at this stage are required to begin serving their sentences, with the exception of those sentenced to death, who go through another stage of review by the Supreme People’s Court.

After appeals are exhausted and a verdict becomes final, the only way a case can be reopened is by initiating the process known under the Criminal Procedure Law (CPL) as “adjudication supervision.” The law gives convicted persons, as well as their legal representatives and close family members, the right to petition either the court or the procuratorate to seek retrial. The law specifies five conditions under which the court ought to provide relief:

New evidence demonstrates errors in the factual basis of the original decision that could have an impact on conviction or sentencing;

Evidence used to convict or sentence was unreliable, insufficient, or should have been excluded, or contradictions exist between major pieces of evidence used to determine the facts;

The law was applied erroneously;

Procedure was violated in a way that affects the fairness of the adjudication; or

Judicial personnel were corrupt, showed favoritism, or perverted the law.

The adjudication supervision process also empowers higher courts to order lower courts to reopen cases and permits higher level procuratorates to file post-conviction appeals if they “discover” errors in cases that have already been decided. In practice, this means that individuals (or their advocates) have an incentive to employ a variety of means—such as petitioning through the “letters and visits” (xinfang) system or attempting to get media attention—to make higher level judicial officials aware of their cases. The effort necessary to garner enough attention to initiate a post-conviction appeal is one major reason why the process tends to take so long.

Lack of Incentives and Clarity

Experts point to a number of other factors that contribute to the arbitrary and slow nature of this process. First is the simple fact that getting a case reopened relies to a considerable degree on getting judicial authorities to acknowledge the possibility that they made a mistake. Human nature makes this difficult enough, but recent personal accountability measures imposing “lifetime responsibility” for errors in the judicial process may make police and judicial authorities more resistant. This is why lawyer Mao Lixin, who has handled a number of wrongful conviction cases, thinks that such measures need to be calibrated to incentivize individuals and institutions to admit and remedy past mistakes.

Another factor contributing to the difficulty of initiating the post-conviction relief process is the absence of clear procedures. Though the CPL sets out the criteria under which cases should be reopened and procedures for how new trials should be carried out, there are no procedures for the initiation or review of petitions for post-conviction relief. There is also a lack of clear, formal differentiation in the evidentiary standards used to review petitions for post-conviction relief and those used to overturn convictions. In practice, many courts will only provide new trials in cases where evidence for exoneration is overwhelming—such as when a supposed murder victim turns out to be alive or another person credibly confesses to the crime. Because of the way the current system is designed, courts that decide to retry a case often become the focus of public attention and scrutiny. This creates an expectation for courts to reverse their verdicts that undermines the impartiality of adjudication.

Calls for Law, Transparency, Oversight

The way to resolve these problems, legal experts argue, is to formalize the process of post-conviction appeals and define each stage more clearly under the CPL. They point to recent docketing reforms that have simplified individuals’ ability to file lawsuits of all types and suggest that courts also be required to accept petitions for post-conviction relief as long as they meet basic criteria. As for the review process, Renmin University Law School Professor Chen Weidong argues that a formal procedure needs to be introduced that would increase transparency and give petitioners a more meaningful opportunity to participate and air their positions.

Chen Guangzhong, one of China’s leading procedural law experts, has even proposed setting up an independent body to review petitions for post-conviction relief that would be made up of people’s congress delegates and members of the public. This, he argues, would help overcome the challenges arising from asking courts to find fault with themselves. Though it is hard to imagine such a body playing a direct role in what others are hoping will become a more formal judicial process, some have suggested that a non-judicial body could at least serve to exercise a welcome degree of independent oversight.

Fear of Retaliation

Formalizing a judicial process for post-conviction relief could help to greatly reduce the amount of time and effort spent trying to remedy wrongful convictions, but it may not lead to more exonerations. Individuals convicted of endangering state security and other political crimes will likely continue to find it nearly impossible to have their cases retried, even if reforms reduce court discretion over docketing decisions and make review proceedings more transparent.

In fact, many who are currently serving prison sentences choose not to exercise their right to petition for post-conviction relief because they fear retaliation or negative impacts on their eligibility for sentence reduction or parole. When journalist Gao Yingpu was serving his three-year sentence in connection with critical comments made online about former Chongqing Party Secretary Bo Xilai, his wife reportedly declined to pursue post-conviction appeal for fear that he might be penalized for “refusing to admit guilt.” She changed her mind after Bo Xilai was removed from power. She filed a petition with the Chongqing High People’s Court in January 2013, shortly before Gao was given a sentence reduction and released from prison. As far as anyone knows, that petition—like so many others throughout China—is stuck in bureaucratic limbo.